Authors challenge Google’s book copying project

Posted Fri, January 1st, 2016 5:49 pm by Lyle Denniston

Three book authors and their advocacy organization have taken to the Supreme Court their decade-long copyright fight with Google over its massive book-copying and search project. The new appeal, filed on Thursday, asked the Justices to take away the giant digital firm’s legal protection against paying fees and getting permission to add whole volumes to its database. The filing accuses Google of violating copyright “on an epic scale.” Overall, Google has made digital copies of some twenty million books; about four million of them still are under copyright.

The case would provide a major test of when someone accused of infringing on copyright can use the defense that it was only making “fair use” of the contents, which federal law allows. In particular, the case focuses on whether the Google Books project actually “transforms” the protected books to a new form of expression. The authors have claimed that the project adds nothing new to the originals, and therefore does nothing to reshape their character in a “transformative” use.

The three authors — Betty Miles, Jim Bouton, and Joseph Goulden — are joined in their appeal by the Authors Guild, a professional society of authors that seeks to protect its members’ benefits in their copyrights. The Guild seeks to reenter the case, after a lower court ruled that only authors themselves have a legal right to sue over infringement. At one point in the ten-year history of this lawsuit, the case was a class action representing other authors, but has since lost that status.

The Google Books project began in 2004, and resulted in major universities giving the search company a right to copy, from beginning to end, books in their collections, without permission of the authors. The company entered the volumes in its database, and it gives the public — at no cost — a right to search for words and phrases in books that Google suggests in response to Internet queries. The search results in a display of what a lower court called mere “snippets” of a protected book, but the authors insist that the overall effect of such an open-ended project is to expose nearly all of the contents to readers without any return to the authors.

In return for the right to copy, Google has given the university and public libraries free digital copies of all of the books it had put in its database, with the only restriction on their use that they not violate copyright law.

At one point, the two sides agreed to settle their dispute, but a federal trial judge rejected the deal as too generous to Google. That judge then ruled that the case could go forward as a class-action claim. However, the U.S. Court of Appeals for the Second Circuit ruled that the judge should first rule on Google’s defense of “fair use,” The judge then decided on that issue, in favor of Google, and dismissed the authors’ lawsuit.

Last October, the Second Circuit Court decided that Google Books was entitled to make the “fair use” defense against the infringement claim, finding that the public benefit that will come from wide access to the Google digital library would constitute a “transformative” use within the meaning of copyright law. It then upheld dismissal of the authors’ case.

In the authors’ new petition, they argued that Supreme Court precedent limits the availability of a “fair use” defense based on creating a transformative version to adaptations that actually create new expression, not simply public access to the same creation that the author undertook in writing the original volume.

The challengers also contended that Google, even though it did not sell the digital library books back to the libraries, did use the project for commercial gain, because it allowed Google engineers to create new technologies on searching that would clearly produce revenues for the company as it operates its huge search business. The authors also asserted that the Second Circuit ruling, if allowed to stand, would create a legal road map for other copy-and-search suppliers to follow, further reducing the prospects for the authors to continue selling their books to consumers.

Google will have a chance to reply to the petition before the Justices act on it. The case has reached the Court too late to be processed for a decision this year, even if the Court grants review in coming months.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.